OPINION
Gookins
J.
Springfield
township, in Franklin county, being also a congressional
township, upon complaint against Quick, the auditor, and
Robeson, the treasurer of said county, obtained an injunction
to prevent said auditor and treasurer from distributing the
common school funds in said county, as required by the act of
March 5, 1855. From the order making said injunction
perpetual, they appeal to this Court.
The
complaint shows that said township has a considerable fund,
derived from the sixteenth section therein, and the plaintiff
claims that the annual income arising from that fund shall
not be taken into account, as said act requires in making
distribution of the revenues of the state derived from other
trust funds and from taxation.
The
ground upon which this claim is made, is, that the act in
question is unconstitutional, and also that it violates the
act of congress making the grant.
The
eighth article of the constitution is as follows:
"Sec.
1. Knowledge and learning, generally diffused throughout a
community, being essential to the preservation of a free
government; it shall be the duty of the general assembly to
encourage, by all suitable means, moral, intellectual,
scientific, and agricultural improvement; and to provide, by
law, for the general and uniform system of common schools,
wherein tuition shall be without charge, and equally open to
all.
Sec. 2.
The common school fund shall consist of the congressional
township fund, and the lands belonging thereto;
"The
surplus revenue fund;
"The
saline fund and the lands belonging thereto;
"The
bank tax fund, and the fund arising from the one hundred and
fourteenth section of the charter of the state bank of
Indiana;
"The
fund to be derived from the sale of county seminaries, and
the moneys and property heretofore held for such seminaries;
from the fines assessed for breaches of the penal law of the
state; and from all forfeitures which may accrue.
"All
lands and other estate which shall escheat to the state for
want of heirs or kindred entitled to the inheritance;
"All
lands that have been or may hereafter be granted to the
state, where no special purpose is expressed in the grant,
and the proceeds of the sales thereof; including the proceeds
of the sales of the lands, granted to the state of Indiana by
the act of congress of the 28th of September, 1850, after
deducting the expense of selecting and draining the same;
"Taxes
on the property of corporations, that may be assessed by the
general assembly for common school purposes.
"Sec.
3. The principal of the common school fund shall remain a
perpetual fund, which may be increased, but shall never be
diminished; and the income thereof shall be inviolably
appropriated to the support of common schools, and to no
other purpose whatever.
"Sec.
4. The general assembly shall invest, in some safe and
profitable manner, all such portions of the common school
fund as have not been heretofore intrusted to the several
counties; and shall make provision, by law, for the
distribution, among the several counties, of the interest
thereof.
"Sec.
5. If any county shall fail to demand its proportion of such
interest, for common school purposes, the same shall be
re-invested for the benefit of such county.
"Sec.
6. The several counties shall be held liable for the
preservation of
so much of the said fund as may be intrusted to them, and for
the payment of the annual interest thereon.
"Sec.
7. All trust funds, held by the state, shall remain
inviolate, and be faithfully and exclusively applied to the
purposes for which the trust was created.
"Sec.
8. The general assembly shall provide for the election, by
the voters of the state, of a state superintendent of public
instruction, who shall hold his office for two years, and
whose duties and compensation shall be prescribed by
law."
The
following are two sections of the act referred to, which
prescribe the mode of distributing the funds:
"Sec.
97. The state superintendent shall annually, by the fourth
Monday in April in each year, make out a statement showing
the number of scholars in each county of the state, the
amount of the income of the common school fund in each county
for distribution, and the amount of taxes collected for
school purposes, and shall apportion the same to the several
counties of the state, according to the enumeration of the
scholars therein without taking into consideration the
congressional township fund in such distribution."
"Sec
101. The treasurer of the several counties shall annually, on
the...
